On July 3, 2013, the Obama administration released its spring 2013 regulatory agenda, which includes new deadlines for significant OSHA rulemaking. One of those new items includes OSHA’s proposed recordkeeping rule change, titled “Clarification of Employer’s Obligation to Make and Maintain Accurate Records of Work-Related Injuries and Illnesses.” The proposed rule is to be unveiled by November of this year.

Under the new rule OSHA will attempt to clarify that: (1) the duty to maintain accurate records of work-related injuries and illnesses is an ongoing obligation; (2) the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred; and (3) this duty will not expire even if the employer failed to make the necessary records in the first place. This is consistent with OSHA’s original interpretation of the OSH Act’s statute of limitations for injury and illness recordkeeping before the District of Columbia Circuit Court of Appeals rejected it in 2012.

Although not specifically mentioned in the description of the proposed rule, this rulemaking is clearly OSHA’s first attempt to circumvent the Volks decision by the D.C. Circuit Court of Appeals (AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012), in which the court held that a plain reading of the six-month statute of limitations in the OSH Act limits the period of time in which OSHA can issue a recordkeeping citation to six months – that is, OSHA may issue a recordkeeping citation no more than six months after a recordkeeping violation has occurred, period. In making this finding, the court rejected the Secretary of Labor’s argument that because the injury and illness rules include a five-year document retention rule, it could tack five years onto the six month statute of limitations, giving OSHA five years and six months to issue a citation for an injury and illness recordkeeping violation. The court strongly rejected the Secretary’s argument, concluding that it could lead to absurd results and essentially give the Secretary the ability to extend the statute of limitations forever, simply by adding a never-ending document retention rule to the recordkeeping requirements.

OSHA has often voiced its strong opposition to the Volks ruling and stated that it would fight it, but never hinted that it would attempt to do so through rulemaking. OSHA’s proposed rule, however, is clearly aimed to do just that. Should the Secretary recharacterize the duty to maintain accurate records as an “ongoing obligation,” that need not be triggered by a specific occurrence, it will have essentially accomplished the result that the Volks court rejected – it would permit the Secretary to create an ambiguous and potentially never-ending statute of limitations for recordkeeping violations. Such a rule will certainly face considerable legislative challenges from major stakeholders. And given the strength and clarity with which the Volks court rejected the idea of characterizing recordkeeping violations as “ongoing obligations,” it is likely that OSHA’s proposed rule, if adopted and enforced, will end up back in court, facing strong challenges to its validity.

The proposed recordkeeping rule applies only to “Work Related Injuries and Illnesses.” If the new injury and illness recordkeeping rule is adopted, portraying the recordkeeping obligations as continuing in nature, compliance officers will surely rely on it as justification for extending the OSH Act’s statute of limitations on other recordkeeping requirements found throughout OSHA’s regulations. OSHA regulations contain scores of recordkeeping requirements. OSHA’s Process Safety Management (PSM) standard, for example, contains provisions such as 29 C.F.R. § 1910.119(e)(5) (requiring an employer to retain documentation showing that certain findings and conclusions of process hazard analyses have been resolved) and 29 C.F.R. § 1910.119(o)(4) (requiring an employer to retain documentation showing that the findings from a compliance audit have been addressed).

Although there are no rules or case law to support its theory, OSHA has asserted that violations of these PSM provisions are continuing violations as long as the improper documentation continues. But applying the Volks analysis, the relevant occurrence which starts the clock on the OSH Act’s statute of limitations would have taken place when the employer allegedly failed to create the document or created an inadequate document.

This begs the question, if the new injury and illness recordkeeping rule is adopted, will Volks continue to apply to citations for recordkeeping violations outside of the realm of injuries and illnesses? Will the Secretary propose new rules making all OSHA recordkeeping requirements “continuing violations”? Regardless of the path that OSHA chooses to take, the final resolution of this issue is sure to come at the end of a very long and winding path of rulemaking and litigation.

For more information, please contact Mark Dreux, head of the Arent Fox OSHA practice, at 202-857-6405.

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